Delhi Dayal Bagh Co-Operative ... vs Mahendra Kumari Sisodia (Since ...
2013 Latest Caselaw 5161 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                  Date of decision: 11th November, 2013.

+                              RFA 520/2013

       DELHI DAYAL BAGH CO-OPERATIVE
       HOUSE BUILDING SOCIETY LTD.                ..... Appellant
                    Through: Mr. Rakesh Malviya and Mr.
                             Saurabh, Advocates.

                               Versus

    MAHENDRA KUMARI SISODIA (SINCE DECEASED)
    & ANR                              ..... Respondents
                  Through: None.
CORAM:
HON'BLE MR. JUSTICE RAJIV SAHAI ENDLAW

RAJIV SAHAI ENDLAW, J.

1. The appeal impugns the judgment and decree dated 25 th July, 2013 of

the Court of Additional District Judge (ADJ)-06, West District, Tis Hazari

Courts, Delhi of dismissal of Civil Suit No.49/2012 filed by the appellant

Society.

2. The said suit was filed by the appellant Society for permanent and

mandatory injunction i.e. to restrain the respondent/defendant No.1 from

raising construction on plot No.B-19 in the colony of Soami Nagar, New

Delhi and for directing the respondent/defendant No.2 Municipal

Corporation of Delhi (MCD) to stop all construction activities on the said

plot of land.

3. The appellant Society claimed the aforesaid reliefs on the premise

that the appellant Society having developed the colony of Soami Nagar had

having allotted the plots therein to its members, no transferee from such

members could hold or enjoy the plot without becoming a member of the

appellant Society and since the respondent/defendant No.1, though a

transferee/purchaser of plot No.B-19 had not become a member of the

appellant Society, was not eligible to become a member, he was not entitled

to raise any construction thereon.

4. The learned ADJ has dismissed the suit holding that the appellant

Society had no subsisting right in the said plot after the execution of deed of

freehold rights in the land underneath said plot in the name of the

predecessor in interest of the respondent/defendant No.1 and that there was

no necessity for the respondent/defendant No.1 to become the member of

the appellant Society to own the said plot of land. It was also found that the

construction being raised by the respondent/defendant No.1 on the said plot

of land was in accordance with the plans sanctioned by the

respondent/defendant No.2 MCD.

5. The counsel for the appellant Society on enquiry, whether not the

construction already stands completed, confirms the same but contends that

the grievance of the appellant Society is qua the findings in the impugned

judgment, of the appellant Society having no subsisting right in the said plot

of land and of there being no need for transferees of plots of land in the said

colony to become a member of the appellant Society.

6. It has however been enquired from the counsel for the appellant

Society, whether not the said issue already stands settled in other cases

which have come up before this Court with respect to the other plots in the

said colony.

7. The counsel for the appellant Society confirms and has in this regard

referred to Delhi Dayalbagh Cooperative House building Society Ltd. Vs.

The Registrar Cooperative Societies 195 (2012) DLT 459 (DB).

8. On further enquiry, he confirms that the challenge to the said

judgment to the Supreme Court already stands dismissed.

9. The counsel for the appellant Society however refers to the judgment

of the Supreme Court in Civil Appeal No.1551/2000 titled Zoroastrian

Cooperative Society Vs. District Registrar Cooperative Societies.

10. Even if that be so, the counsel confirms that the Division Bench of

this Court considered the matter relating to the appellant Society and the

colony developed by the appellant Society after the said judgment in

Zoroastrian Cooperative Society (supra) and thus it cannot be said that any

different view can be taken in this appeal.

11. I am of the view that the appellant Society cannot repeatedly raise the

issue which has been raised in this appeal with respect to each and every

plot of land in the colony developed by the appellant Society and once the

legal question has been adjudicated with respect to the other plots in the

colony, cannot be re-agitated.

12. In view of the aforesaid, the appeal is dismissed in limine with no

order as to costs.

Decree sheet be drawn up.

RAJIV SAHAI ENDLAW, J.

NOVEMBER 11, 2013 bs